Conrad Black

by A Matter of Principle

  The judge is a rubber stamp for the prosecution service, and the public defender, when interrogated by his client, shrugs and says the prosecutor broke his word. The entire system is a mockery; the public defender is a Judas goat restraining the fiscal burdens of sending 750,000 more unfortunates off to prison each year (more than three times the entire prison populations of France, Germany, Japan, and the U.K. combined, which have 110 per cent of the U.S. population), by persuading the untouchables not to exercise their fictional, though constitutionally gurantied rights. I saw them every day in St. Eve’s court; the wretched refuse from the municipal corrections centre in their orange jumpsuits, heavily shackled, being treated as mere freight by their slovenly, undemonstrative, court-appointed “defenders.”

  The notion of one’s day in court is threadbare enough for those who can afford proper counsel. It is a complete fraud for the tens of millions who cannot. Ms. Bach estimates, after very professional and thorough research, that the 47 million convicted felons in the U.S. includes very many relatively minor offences such as disorderly conduct and impaired driving. But it is 15 per cent of the population, and tens of millions of these people were put away for a significant time.

  Two of my fellow tutors and I had the privilege of reviewing films for possible educational reuse, at screenings on Saturday afternoons, and one of them was Henry Fonda’s performance in Gideon’s Trumpet, about a poor white man who secured, through a hand-written petition to the U.S. Supreme Court in 1963, the right of all Americans to have criminal counsel if they are unable to afford it themselves.

  The film ends with a fine comment from then Attorney General Robert Kennedy, after eminent lawyer (and future Supreme Court Justice) Abe Fortas won the argument for Gideon. And the implication is that this was a great legal breakthrough. As has been described, the real result of this gallant effort is the colossal and contemptible scam of the U.S. public defender system. These sociologically deeply rooted, economically related problems will require more than reform.

  MORE THAN 5 MILLION African Americans have been disenfranchised because of their legal records, and we are now getting back to the level of black disenfranchisement that prevailed prior to President Lyndon Johnson’s Civil and Voting Rights Acts of 1965. The per capita number of blacks to whites in prison is nine times greater. Nearly half of American black males between twenty and twenty-nine are under some form of criminal justice supervision. In practice, where it is decided whether indicted offenders will be streamed through federal or state courts to prison, the African Americans are almost invariably fed in overwhelming numbers to the harsher federal system. No one audible seems to take it amiss, including most black leaders, among them the president and the attorney general.

  THE WAR ON DRUGS

  CRACK COCAINE DEALING WAS UNTIL RECENTLY treated up to one hundred times more severely than powdered cocaine. Because crack is heavily used by African Americans, this law is, in effect, another racial discriminatory measure designed to create an immense racial imbalance in the makeup of the prison population, as it has. These inequalities are becoming steadily more extreme along racial and economic lines. After slavery, what Lincoln called “the bondsman’s 250 years of unrequited toil,” and a century of demeaning and often brutal segregation, which Lyndon Johnson called “a century of ‘Nigra, Nigra, Nigra,’” despite all the progress and thirty months of an African-American president (who attracted the votes of ninety-nine per cent of African Americans) and Attorney General, but who have only just reduced the disparity. The disparity between crack and powder cocaine offenses from 100 to 1 to 18 to 1, which is still outrageous. Drug laws are being used to extend the history of the unequal treatment of blacks in America into a fifth century.

  The American black problem is showing a satanic tenacity and ingenuity. And it must be said that this is due to the failings of the whites. There is too much black victimhood and no shortage of black racism, and there has been great progress, but the legacy of slavery is fiendishly persistent. And the even larger Latin population fares little better.

  It is indicative of official American arrogance at its most inflated and obtuse that instead of suppressing drug appetites among its dilettantish bourgeois youth and degraded underclass, or using its immense military strength to secure its borders without strangling legitimate commerce and tourism, it has purported to require other countries to eliminate supply. This is a potentially terminal hubris. The United States has reduced Mexico to a state of virtual civil war and escalated the wars in Colombia and Afghanistan, claiming to fight drugs at their source, rather than in domestic U.S. demand.

  The drug war has been a perfect illustration of the strength of supply-side economics, as the price has come generally down through greater supply, improved product quality, and rising demand, despite the imprisonment of more than one million small fry which are easily replaced by the drug trade kingpins. The War on Drugs has cost $1 trillion, and within America has almost nothing to do with violence. Drugs are involved in one-third of property crimes, but only 5 per cent of violent crimes. People growing a thousand marijuana plants get mandatory life sentences. Now that the methamphetamine drugs can be concocted by amateurs without importing or growing anything, alternative policy options will finally have to be considered. But all the current administration’s senior appointments in drug enforcement discourage any optimism that more enlightened policies await.

  The Congress declined money requested by the Clinton administration for more methadone treatment, though it is fifteen times more effective than imprisonment for reducing drug use, and hugely less expensive. The War on Drugs has been a complete failure, except for the beneficiaries of the proliferating prosecution, prison industries, and the principal drug suppliers and traffickers themselves.

  Marijuana is the largest cash crop in California, and 42 per cent of Americans use it at some point in their lives. Prohibition was a howling success compared with this, and Al Capone and other great liquor profiteers of that era were pacifistic Sunday school teachers compared with the leading Mexican and Colombian drug lords.

  MANIPULATING THE SYSTEM

  WHAT WAS UNUSUAL ABOUT OUR CASE was not the brutality of the U.S. prosecutors and their trans-border accomplices, or of the legal and judicial personnel they infected for their purposes. It was that instead of settling on the target themselves, they allowed Richard Breeden to do the targeting for them, and he was on a mission and thought the battle won when he set the cross-border legal and regulatory apparatus on our backs. No one made any allowance for the fact that we were not guilty; that it would not be possible to seize or strangle my ability to pay for a legal defence from assets situated outside the United States; that Radler’s crimes had not been concerted with the rest of us; or that we would have counsel able (Miguel Estrada and David Debold) to raise the constitutionality of the government’s habitual procedure and evoke the issue to the country’s highest court, far from the fetid, ward-heeling political bazaar of the Chicago Federal Courthouse, made no less sinister by the Little Red Riding Hood demeanor of St. Eve and the sterterous and insolent biases of Posner.

  It followed the normal pattern for several years, as more and more people were cajoled or dragooned into the swelling lynch mob, gorging themselves on the hundreds of millions of dollars that erupted from the Hollinger piñata when they had ruptured it. As has been recounted, Strosberg, who didn’t need any instruction from the Americans about how to stuff himself like an Alsatian goose (financially and otherwise), paid himself more than $1 million for four months of unsuccessful legal work, approved mechanically by his local Windsor Law Society. Walker, after nine months at $100,000 a month for non-executive meddling and diddling, took another $600,000, which he brazenly demanded from Peter White in face-to-face straightforward negotiation for his vote for approving the privatization for which the shareholders had been clamouring, after having feverishly tried to sabotage it for many months. Richter, the Ravelston receiver, having insanely responded to
the U.S. charges, eagerly accepted the yoke of Sussman’s despotism like the others, milked Ravelston for $8 million, pledged $7 million to the U.S. government and unspecified restitution (of which the United States will never see a brass farthing), promised questionable evidence that was ultimately not admitted, and even deprived the small-income pensioners of a large chunk of their accumulated pensions, which I hope to make good from my own resources when I dispose of the accursed idiocy of the Mareva. Voorheis drained Hollinger Inc. of more than $5 million as he drove it toward and into bankruptcy, and was re-elected by Richter on Sussman’s orders a few months before the rich company we had left was capsized into the bankruptcy they had so wantonly engineered, against all their and their legal sponsors’ promises at the time of their engagement, not to mention their duty to the stakeholders, and the spun sugar candy of the Law Society’s ethical standards.

  Of course this was just an hors d’oeuvre compared to the orgy of wickedness in America. O’Melveny & Myers mined the Breeden lode in Hollinger International for more than $150 million, had the effrontery to bring in one of their partners as an expert witness in our trial, then po-facedly piggybacked on our appeal to the Supreme Court, where they represented Geoffrey Skilling and gave him, as they had at trial, a half-hearted argument, to avoid too great a solidarity with us, in defence of the fact that they had raped Hollinger for five times as much as they were able to wring from the writhing financial corpse of the former Enron boss.

  Having championed honest services against us, when receiving $150 million for acting for the Hollinger International Special Committee, O’Melveny’s didn’t raise it at the Supreme Court, though honest services was the only reason they got to that court, following us. Finally, since the petition from Skilling had been accepted on the honest service issue, the bench asked the O’Melveny partner who was arguing the case about that statute, and received a rather underwhelming response. When we won, O’Melveny launched a public relations blitz claiming credit for it. This is not entirely atypical of the ethics of the profession that is responsible for keeping the rule of law alive and prosperous and respected in America.

  In the zeal of its agents to crucify me, the U.S. government brought financial sorrow to scores of thousands of homes in all parts of the United States and Canada. It showed no concern for those whose innocence was never in question, and is the principal author of their loss of $2 billion. But even as the continental official scorched-earth policy destroyed the small shareholders’ interest, I had partially rebuilt my means from the large gains on the value of my homes, and, ironically, from the gains generated by ruthless Radlerian management of the private newspaper companies that had been accumulated fraudulently by him but approved of as untainted in the deal the prosecutors made in exchange for his inculpatory perjury against my co-defendants and me.

  Of course I had lost my biggest asset with the ruination of the Hollinger companies, but not so much that I could not pay to fight my way through the case and to restore my financial and moral position when the war was over, provided some public curiosity persisted about my side of the case, and my liberty and other non-Hollinger resources substantially survived the trial. They did. Punishment before trial was never contemplated by America’s founding fathers.

  When I adjusted from my precipitate downfall from my previous position and accepted the inevitability of criminal prosecution and the possibility of imprisonment after Strine and the OSC stopped my efforts to salvage something for all the shareholders, I discovered my new, involuntary midlife vocation. If I could resist the tyranny and corruption of the U.S. prosecution service, I might be able to show, regrettably, but more persuasively if unjustly imprisoned, that the plea bargain system has become, in Brendan Sullivan’s phrase, “evil and repulsive.” The almost universal practice of exchanging false testimony against targeted victims for relative leniency will rot the judicial soul of America.

  While I was at it, I could get in a pretty good shot at the short-comings of the corporate governance movement. Chris Browne, who had held a continuous press conference celebrating his great victory over me for eighteen months, revealed in occasional grumpy interviews later that he was just as hostile to Breeden and Paris. He had precipitated a disaster for his investors (a loss of more than $150 million from its highest price and $70 million on his cost) and other Hollinger international investors. A war of attrition affects all combatants, not just the party initially attacked.

  The great newspapers and renowned commentators, even those most sympathetic to me, said nothing publicly about the rot of the system, though some, including Bill Buckley and George Will, spoke out publicly for me personally. Mark Steyn, Robert Tyrrel (The American Spectator), Roger Kimball (The New Criterion), and Seth Lipsky (New York Sun) were exceptions and warned darkly of where the plea bargain system could lead.

  America has witnessed, almost silently, the triumph in its justice system of persecution abetted by denunciation. The Constitution has guaranteed rights that, if exercised, would overload the system, as defendants normally just give up after being treated to the pre-trial antics of prosecutors. And as has been described, most defence lawyers aren’t really barristers; they get a slight reduction in sentence by sparing the prosecutors the tedious formality of a trial. The U.S. justice system had many fewer plea bargains and more integrity fifty years ago, apart from in racial matters, and the trend is dangerous for every person in the country.

  The executive community of America has been cowed. It may have been unbecoming for J.P. Morgan to say, “The public be damned!” publicly, but so is the mousy, insincere, and platitudinous do-goodism of almost all of America’s current leading financiers. The notion of a day in court in matters involving the federal government is illusory, and in criminal matters is, as has been extensively described, a farce, a national rodomontade, in fact. Justice is blind, but not in the sense intended. The law that rules is not the law that is written, much less celebrated, and there are obviously scores of thousands of innocent people in American prisons, and hundreds of thousands of grossly oversentenced convicts.

  They are not yet numerous or respectable enough to constitute a strong political constituency, but they will be. The impoverished simply are ground up mechanically by the system, and don’t even try to fight it because they don’t have the means. The middle-class small business owners and professionals fight according to their means, but almost all are ruined, imprisoned, disgraced, and personally broken. Even the wealthy victims – Michael Milken, Alfred Taubman, Martha Stewart – go quietly off to prison, like children to be thrashed at the woodshed, and return chastised but say nothing of the system that assaulted them. Whatever might happen, I resolved that the same would not be said of me.

  It is not the least irony of contemporary American affairs that as the United States has successfully and bloodlessly crushed the Communist illusion of a command economy, it has delivered its justice system, the moral centre of any democracy, to a command requirement for more and more convicts to fill the prisons that the unjust laws, the stacked deck of criminal procedure, the biased judges, the stifling ambiance of prosecute and convict and elect, the bloodthirsty media, and the sucker deals with rapacious private prison companies, prison industry suppliers, and the Luddite prison workers unions, and the rights-blind police associations, produce and require. The law, an occupation I almost pursued, is a very necessary but much-debased profession. The putrefaction of the U.S. justice system is rampant and, I repeat, is a mortal threat to the integrity, institutional soul, and historic purpose of America.

  In the piping days of my great affair with America, I thought it a rough-and-tumble legal system that might have the upside of motivating and sharpening the American elites and workforce. Perhaps it was, once. Now it is just the noisome slough of moral carrion, ruined lives, and broken faith. It inspires not Olympian competition or the splendour of a great jungle beast, but rather disillusionment, misery, and ultimately, revolt.

  Altruistic o
r meliorist instincts cannot be relied upon to achieve much politically in the United States. Fundamental change is accomplished by the forces of the economic and political market, harnessed or guided by talented and often benignly devious leaders, such as Lincoln slipping emancipation into the suppression of the rebels; FDR redefining neutrality as undeclared war; Martin Luther King holding the reins of the militant blacks while conquering the consciences of the moderate whites; LBJ with civil rights (“the idea whose time has come”); Reagan ending the Cold War by raising the poker ante with defensive weapons, the Maginot Line that worked politically (if not, altogether, militarily).

  There is plenty of opportunity to discuss all these subjects here with knowledgeable people. Bill Buckley and George Shultz, and even Richard Posner, were right; the War on Drugs is a fraud and a failure and should be abandoned.

  Always in its history when the United States had to have outstanding leadership, it has emerged: Washington, Lincoln, Franklin D. Roosevelt. It needs it now, and not only for the reasons detailed here. In announcing their result of the Constitutional Convention in 1789, Benjamin Franklin said, “A republic, if you can keep it.” The country has faced greater threats since then than it is facing now, but the Constitution has not.

  In the end, the United States is always governed from fairly close to the centre. The prison industry is more threatening than the defence industry that President Eisenhower warned the country about in 1961, which at least promoted sophisticated technology, protected national security, and didn’t shred the Constitution and tyrannize the people. It will be exposed and tamed. The excesses of the media, endlessly inciting paranoia about crime and the supposedly cowardly mollycoddling of criminals by the politicians, allowing the wrongful and unconscionably prolonged imprisonment of millions of people, all under the tired and fetid mantra of “law and order”—all this will abate or be corrected eventually, as witch-hunting, slavery, industrial feudalism, Prohibition, isolationism, segregation, McCarthyism, and the violent domestic left did or were.